Crago v Pacific Waste Management Pty Ltd & Ors No. DCCIV-99-1428

CRAGO v PACIFIC WASTE MANAGEMENT PTY LTD & ORS
[2003] SADC 119
Judge Allan
Civil

The plaintiff has a bad back. He seeks damages from the defendant in respect of it, alleging that it was caused by the negligence of the defendant. The defendant denies liability. So far as the third party proceedings are concerned, the defendant claims against each of the third parties to be indemnified in the event that it is held liable to the plaintiff.
At all material times, the plaintiff was employed by Skilled Engineering Pty Ltd (“Skilled Engineering”). Pursuant to a contract between Skilled Engineering and the defendant, the plaintiff was hired to the defendant to work as a garbage truck driver. The defendant was in the business of collecting and disposing of garbage.
Among the trucks operated by the defendant for the purpose of collecting garbage, were trucks fitted with dual driving controls; one set on the right and the other on the left. Those controls on the right were used by the operator to drive the truck in the normal way to and from the area where garbage was to be collected and to take the garbage to the disposal site. The controls on the left were used by the operator when garbage was being collected.
Attached to the outside of the trucks were hydraulic arms. On some trucks, the arms were operated from inside the truck, while, on others they were operated from outside the truck. These arms picked up the garbage bins and emptied them into the truck. In the case of those trucks where the hydraulic arms were operated from outside the truck, it was necessary for the driver of the truck to alight from the truck for that purpose each time a garbage bin was being emptied. The driver of such a truck would drive it to a position on the roadway adjacent to the garbage bin which was to be emptied, stop the truck, alight from the cabin, manoeuvre the garbage bin into the required position as necessary, operate the hydraulic arm for the purpose of emptying the bin and, the bin having been emptied and placed on the ground, re-enter the truck and drive to a position adjacent to the next garbage bin. In this way, the driver of the truck would empty numerous bins in an hour and, in the process, leave and enter the cabin of the truck numerous times.
On 4 October 1996, the plaintiff was operating one of the defendant’s garbage collection trucks on which the hydraulic arms were operated from outside the truck. As I understand it, the plaintiff had previously operated this truck, but not for some time. He had been working for the defendant for some months prior to this date, but his work had been on other trucks. The seat on the left side of the cabin of the truck which he was driving on 4 October 1996, had a safety rail attached to its left side. The door on the left side of the truck was kept open as the garbage was being collected to facilitate ease of movement of the driver in and out of the cabin as necessary. The safety rail was in place to prevent operators from falling from the truck as it was moving. The floor of the cabin was at the same level as a step on the outside of the cabin which the driver used when alighting from, and entering, the cabin.
At an earlier time, the plaintiff had worked for the defendant: for about 18 months, he had worked as a runner on a garbage collection truck; his work involving him in handling and emptying bins.
On 4 October 1996, the plaintiff commenced work at about 6 am. He found the driving position on the left side of the truck to be cramped. The seat was as far forward, towards the steering wheel, as it could go. It was stuck in that position. He could not shift it. The plaintiff is six feet two inches and, at the time, weighed about 15 stones. His stomach pressed against the steering wheel. In entering and leaving the cabin, he had to arch his back and twist his body in order to fit behind the wheel. He had to manoeuvre himself to avoid the safety bar on the seat. As it happened, he frequently struck his left hip on the bar.
As his work progressed, the plaintiff began to feel pain in the back of his left hip. At about 7.00 am, he contacted his supervisor, Mr Gary Taylor, and told him of the difficulties he was experiencing and asked him to send out the mechanic to look at the position of the seat. The mechanic did not arrive and the plaintiff contacted Mr Taylor again at about 7.30 am. Mr Taylor told him that the mechanic was busy.
The plaintiff worked on. Mr Taylor went to see him at about 8.15 or 8.30. The plaintiff’s hip was sore. He told Mr Taylor he kept hitting his hip on the safety bar and that his hip was sore. Mr Taylor tried the driving position himself. There was a discussion between them as to the way in which the plaintiff should leave and enter the cabin; Mr Taylor suggesting a method which the plaintiff had already been using and which involved the plaintiff in twisting and manoeuvring himself into the operating position. Mr Taylor tried to adjust the position of the seat, but to no avail.
Mr Taylor told the plaintiff another truck would be available at about 11.30am, but that, as the plaintiff’s shift would finish at about 12.00 midday, the plaintiff should continue to operate the same truck.
The plaintiff contacted the depot when he had finished his shift. He was told to do another round in an adjacent suburb. He said he had pain in his hip and enquired as to whether there was another truck available. He asked if there was any chance of him finishing work early because he had a sore hip. He was told to proceed to do part of the new round and the truck would be fixed. As it happened, the truck was not fixed or replaced. The plaintiff finished his shift at about 3.00 to 3.30pm. By that time, his hip was very sore.
The plaintiff continued to have pain in the area of his left hip. By the Sunday, 6 October 1996, his hip was very sore with pain going down towards his buttocks.
The plaintiff was keen to work the following day 7 October 1996: it was a public holiday and he wanted the penalty rates. While driving to work, he swerved to avoid a dog. His car mounted the kerb. A tyre was damaged and some wires came off the battery. He changed the tyre and reconnected the wires. His back was sore while he was changing the tyre. As a result of the delay experienced by the incident on his way to work, he did not work that day.
During the course of the day on the Monday, the plaintiff experienced pain travelling down his left leg. While doing some cleaning work at home that day, he felt pins and needles in his left leg.
The plaintiff saw his general medical practitioner, Dr Shahin, on Tuesday 8 October 1996. He was prescribed anti-inflammatory and muscle relaxant medication. A plain x-ray taken within a few days showed some sign of disc degeneration. He had some physiotherapy.
The plaintiff had a CT scan on 17 October 1996. It showed a lumbosacral disc prolapse on the left side. An MRI scan performed on 29 January 1997 showed a left-sided disc prolapse at the lumbosacral level with compression of the left S1 nerve root. On 26 February 1997, Mr North, a neurosurgeon, performed a lumbosacral discectomy and decompressed the left S1 nerve root, after which the plaintiff noticed a reduction in his lower back pain and relief from the pain in his left leg.
Eventually, after a period of convalescence, the plaintiff returned to work on light duties. It was light work which he could do sitting or standing. He coped with the work save that he experienced pain on repetitive bending or working with his back in a bent position; but the symptoms in his back and leg returned and, by late 1997, he was experiencing low back pain, severe pain in his left leg and some pain in his right leg.
On 27 February 1998, Mr North performed further surgery on the plaintiff’s back, freeing up a tethered nerve and removing an osteophyte which had developed. Following this surgery, the plaintiff’s condition improved somewhat, but he has continued to have symptoms of pain in his low back, buttock and left leg.
Since the surgery performed in February 1998, the plaintiff has not had any treatment on his back. He has continued to experience pain in his low back, which is constant, and shooting pains in his left leg on a daily basis. He takes digesic from time to time to ease his symptoms. The pain disturbs his sleep and he sometimes takes a sleeping pill.
The plaintiff is unlikely to undergo any further treatment. A lumbar fusion could be performed, but such a procedure is not recommended, it having attendant risks of its own and any benefits would be marginal. The plaintiff will have to learn to live within his physical capabilities. His symptoms are unlikely to disappear.
In making the findings of fact which I have just recited, I have treated the plaintiff’s evidence as a reliable basis therefor.
There is no dispute that, as at 4 October 1996, the plaintiff had a long-standing, degenerative condition of his low back. He was vulnerable to the sort of disc prolapse he suffered. All the medical practitioners who gave evidence are agreed on that; but there is some dispute between them as to when the disc prolapse occurred. Mr North, Mr Osti, an orthopaedic surgeon who specialises in back disorders, and Dr Ollino, the plaintiff’s general practitioner, are of the opinion that the disc prolapse occurred on the Friday, 4 October 1996; Mr McCulloch, another orthopaedic surgeon, being of the opinion that it was caused in the tyre-changing incident the following Monday. I think it is fair to say that, while holding to their respective opinions, each of the medical practitioners is prepared to concede the possibility of the correctness of the other opinion. Dr Meegan, an occupational physician, considers it possible that the disc prolapse occurred on the Friday or in the tyre-changing incident on the Monday.
Those medical practitioners who hold the view that the injury, the disc prolapse, occurred on the Friday, do so for two reasons; first, the nature of the twisting movements of the plaintiff’s body as he manoeuvred himself in and out of the driving position on the left side of the truck and, second, the sequence of events; the initial pain in the area of the left hip, pain going towards the buttock on the Sunday and extending into his low back and left leg on the Monday. For his part, Mr McCulloch considers the sequence of events supports his opinion; regarding it as significant that the low back pain and pain radiating into the left leg on the Monday occurred after the tyre-changing incident. As I have said, the plaintiff’s back was sore as he was changing the tyre; although it was my impression that he was indicating a continuing soreness rather than one which began with the changing of the tyre.
Those medical practitioners of the opinion that the disc prolapse occurred at work on the Friday, do not deny the possibility that, in the tyre-changing incident, the plaintiff aggravated the pre-existing condition of his back. As Mr North said, this incident “muddies the waters”; but, having considered the possibility of such aggravation, they hold to their opinion as to when the disc prolapse occurred and the development of symptoms from it.
I prefer the evidence of Mr North, Mr Osti and Dr Ollino to that of Mr McCulloch on this topic. They found the sequence of events compelling; pain commencing on the Friday, continuing uninterrupted thereafter with development and extension thereof. Once the pain began, it did not abate and spread.
I should say that none of the medical practitioners, with the possible exception of Dr Meegan, treated the striking of the plaintiff’s left hip on the guard rail as being in any way causative of the disc prolapse: it is not the sort of action which would promote a disc prolapse; although it might appeal to a person in the position of the plaintiff as being so.
It seems that a disc prolapse can occur in a variety of ways, many of them simple, particularly in a case of a pre-existing, degenerative condition; and, in considering the issue of causation, I have not ignored the various activities engaged in by the plaintiff on 4 October 1996 in the course of his work; for example, handling the bins and stepping in and out of the cabin of the truck; but, on the facts as I have found them to exist, I am satisfied that it was the twisting movements required to be made by the plaintiff in the cramped conditions in which he was working which was the cause of his disc prolapse; which leads me to this: I am satisfied, and find, that, on the facts as I have found them to exist, the defendant was negligent: the system of work it provided was unsafe; and it caused the injury, the disc prolapse, sustained by the plaintiff; an injury which was, in all the circumstances, foreseeable. I turn to the matter of damages.
The plaintiff is now aged 36. He was educated to Year 9 standard. Since leaving school, he has worked as a truck driver, meat worker, cabinetmaker and garbage collector. He has no formal, academic qualifications other than those he acquired at school and no work skills other than those he acquired on the job. His work has largely been that of an unskilled, labouring type.
In the year ended 30 June 1994, the plaintiff’s gross income was $19,245 of which sum $4,303 were benefits received in respect of periods he was out of work.
In the year ended 30 June 1995, the plaintiff’s gross income was $26,036, of which sum $590 were benefits received in respect of periods of unemployment.
In the year ended 30 June 1996, the plaintiff’s gross income was $22,819 of which sum $3,757 were benefits received in relation to periods of unemployment. In this particular year, he received $5,498 from Skilled Engineering and $12,055 from Bench Top Fabrications, cabinetmakers.
Since he sustained his injury, the plaintiff has been in receipt of weekly payments of compensation. After the first year, the amount he received by way of weekly compensation was calculated at 80% of his notional weekly earnings. In this way, up to 25 July 2003, he received a gross amount by way of weekly payments of compensation of $138,516.76. If he had received 100% of his notional weekly earnings, he would have received a further sum of $29,381.61 gross; a net amount after tax, of $19,979.49.
The plaintiff has undergone, and will continue to undergo, a good deal of pain and suffering. Since the injury was sustained, he has rarely been free of pain and disability. There was the initial pain in his back, buttock and left leg with some associated tingling, and, later, the pain and discomfort associated with the two surgical procedures. Since his second surgical procedure, he has experienced, and continues to experience, shooting pains in his left leg on a daily basis. He experiences a “clicking” in his low back on certain movements. He is never without pain in his low back. It varies in intensity depending on the activities in which he engages and change of weather. He has increased pain on prolonged sitting and standing. He can bend without pain, but not repetitively, and in a controlled way. Lifting causes an increase in his pain. He avoids lifting heavy objects.
The plaintiff’s social and recreational activities have been curtailed as a result of the condition of his back. Before the injury, he went water skiing, fishing, roller skating and kicked a football about with his friends. He no longer water skies, roller skates or plays football. He fishes from a boat only when the water is calm. He copes with the usual domestic tasks subject to the limitations I have mentioned.
As a result of the disc prolapse, the plaintiff is not fit for work which involves heavy lifting, repetitive lifting, prolonged standing, prolonged sitting and repetitive bending. He is fit for light to moderate work which he can perform sitting or standing and where he can move about as he wishes.
In assessing the damages to which the plaintiff is entitled under the head of past economic loss, I have taken into account that, for whatever reason, he would have had periods of unemployment. In the short term, his work with the defendant would probably have come to an end towards the end of 1998; but it must be remembered that he was employed not by the defendant, but by Skilled Engineering.
In assessing the plaintiff’s damages for future economic loss, I have been conscious of the degenerative condition of his spine at the time he sustained the injury. The possibility that, in the future, he could have suffered symptoms there-from, perhaps in the form of a disc prolapse, cannot be ignored; and the real possibility existed that, at some stage, his ability to work and his capacity to earn would had been adversely affected by it; and there is a possibility also that, for other reasons, whatever they might be, and not related to his back, the plaintiff would have had periods of unemployment and his working life truncated. On the other hand, advantageous contingencies cannot be ignored.
The plaintiff continues to have some labour to sell, but it is hard to ignore the possibility that prospective employers would find the prospect of employing a basically unskilled man with a bad back a less than attractive proposition.
Mr Crawley, for the defendant, was critical of the plaintiff’s attempts to find work, suggesting that he found it comfortable to exist on payments of weekly compensation. I must say the plaintiff did not strike me as that sort of person. His physical limitations as a result of his injury are significant and there is no evidence to indicate that he has not engaged in any work of a rehabilitative nature which has been made available to him. The condition of his back aside, he struck me as a healthy man who was not afraid to work. There is no reason to expect that, but for his injury and the resultant incapacity for work it produced, and making allowance for the contingencies I have mentioned, the plaintiff would not have had a full working life.
I have been provided with actuarial calculations relating to the plaintiff’s loss of past and future superannuation contributions.   They are as follows: -
“Loss of Past Superannuation Contributions
The estimated projected loss of superannuation benefit entitlements at age 65 and the present value of the expected net loss of superannuation entitlements as at 30 June 2003, in respect of superannuation contributions that would have been made from 4 October 1996 to 30 June 2003 are:-
Net
       Weekly       Projected Loss  Present Value as at 9 July 2003
         Wage              at Age 65                  3% Discount Rate      5% Discount Rate
            $  $  $  $
(i)      400                  64,900  28,100  16,300
(ii)     500                  84,500  36,700  21,300
(iii)    600                 104,100  41,100  26,200
Loss of Future Superannuation
The estimated projected loss of superannuation benefit entitlements at age 65 and the present value of the expected net loss of superannuation entitlements as at 30 June 2003, in respect of superannuation contributions that would have been made from 30 June 2003 to retirement at age 65 are: -
Net
       Weekly        Projected Loss  Present Value as at 9 July 2003
         Wage              at Age 65                  3% Discount Rate      5% Discount Rate
            $  $  $  $
(i)      400                 135,600  57,100  33,200
(ii)     500                 176,600  74,300  43,200
(iii)    600                 217,700  91,600  53,200”
In the assessment of the plaintiff’s damages for past and future economic loss, I have taken into account loss of superannuation contributions. I should say that I have used the actuarial calculations as a check and have not slavishly followed them.
The same goes for the actuarial calculations provided of the current value of future payments of $1 per week to the plaintiff.    Those calculations are as follows: -
“3% Interest       5%Interest
(i)     for payments to age 60 or prior death:               $856                  $710
(ii)    for payments to age 65 or prior death:               $964                  $776
(iii)   for payments for the whole of life:                  $1,202                 $893”

The figure I have used as a check is that for payments to age 65 or prior death at a discount rate of 3%.
So far as future medical expenses are concerned, I repeat that no further surgical or other treatment is recommended for the plaintiff’s condition. As I have said, he will have to learn to live within his physical capabilities. Apart from the occasional use of digesic for pain relief and an occasional sleeping pill, it is unlikely that he will require any medication. He will probably see his medical practitioner from time to time. Assessment of his damages for future medical expenses will, of necessity, be somewhat arbitrary, and modest.
For about two weeks after each bout of surgery, the plaintiff had some assistance from a friend for a few hours a day. He is entitled to damages in respect of those services, but it too will be a modest sum.
I propose to award an amount for interest on that part of the damages for past economic loss not covered by the weekly payments of compensation. It is not an amount capable of exact calculation and I have taken a broad-brush approach to it.
Special damages have been agreed at $23,398.25.
Doing the best I can, I assess the plaintiff’s damages as follows: -
Past economic loss  $140,000.00
Future economic loss  175,000.00
Non-economic loss  45,000.00
Special Damages  23,398.25
Future Medical Expenses  5,000.00
Gratuitous Services  2,000.00
Interest  1,000.00

$391,398.25
There will be judgment for the plaintiff against the defendant in the sum of $391,398.25.
I turn to the question of the third party proceedings. It is convenient to deal first with the claim against the second third party.
At all relevant times, the defendant was the registered owner of the vehicle being used by the plaintiff on 4 October 1996 and a policy of insurance in terms of Schedule 4 of the Motor Vehicles Act, 1959 (“the Act”) existed in respect of it. The defendant seeks to be indemnified by the second third party (“the Motor Accident Commission”) against its liability to the plaintiff pursuant to that policy of insurance.
Section 99 (3) of the Act at the relevant time provided as follows:
“(3) For the purposes of this Part and the fourth schedule, death or bodily injury will not be regarded as being caused by or as arising out of the use of a motor vehicle if it is not a consequence of –
(a)    the driving of the vehicle;
(b)    a collision, or action taken to avoid a collision, with the vehicle whether in motion or stationary;
or
(c)    the vehicle running out of control.”
The defendant’s case is that the injury sustained by the plaintiff arose out of the use of a motor vehicle and that it was a consequence of the driving of the vehicle.
There seems to be no dispute that the injury to the plaintiff arose out of the use of a motor vehicle; but the Motor Accident Commission denies that it was a consequence of the driving of the vehicle. There also seems to be no dispute that the onus of proving that for which it contends rests on the defendant; although I note the comments of King C J in SGIC v Wagner and Another (1993) 62 SASR 175 at 176.
The cases make it clear that it is a question of fact, “…. in any given case whether death or bodily injury was a consequence of the driving of a motor vehicle”: Cox J in Heath v Corporation of the City of Tea Tree Gully and Another (1996) 66 SASR 548 at 550; and this is particularly so in the case of multi-purpose vehicles. The vehicle in the present case is a multi-purpose vehicle: it can be driven on the road in the normal way and it can be used to collect waste. The question is whether the relevant action which caused the plaintiff’s injury was related to the driving of the vehicle.
As I have already said, in order to collect waste from the garbage bins, the plaintiff drove the truck to a position adjacent to each bin. Having reached that position, he put the truck into neutral, engaged the brake and activated the fast idle button in order to get enough revs to operate the hydraulic arms. He then left the cabin of the truck and emptied the garbage bin in the way I have earlier described. Having done that, he returned to the cabin of the truck. Once having entered the cabin, he released the fast idle button, released the brake, put the truck into gear and drove to a position adjacent to the next bin. In my view, on those facts, the question of whether the relevant action which caused the plaintiff’s injury was related to the driving of the vehicle should be answered in the negative. I am not satisfied that the defendant has discharged its onus. I am not satisfied that the actions which caused the plaintiff’s injury were sufficiently connected with the driving of the vehicle to be said to be “in consequence of” it.
The actions which caused the plaintiff’s injury were those twisting movements involved in him exiting and entering the cabin of the truck. In the former action, the plaintiff was manoeuvring himself out of the position it was necessary for him to adopt for the purpose of driving the truck. In the latter action, he was manoeuvring himself into the position it was necessary for him to adopt for the purpose of driving the truck. In the former action, the act of driving had been completed; it was a movement, or action, subsequent to the driving and not sufficiently connected to it; while, in the latter, it was an action preparatory to the driving, but not sufficiently connected to it.
Mr Crawley, almost by way of an aside, submitted that the plaintiff’s injury was sustained as a consequence of “action taken to avoid a collision” within the meaning of those words where they appear in Section 99(3)(b) in that he twisted or arched his body in order to avoid his hip colliding with the safety bar on the seat when the vehicle was stationary. I do not accept that submission. It is possible that, in a strictly technical sense, it could be said that the action, or series of actions, taken by the plaintiff, at least in part, to avoid his hip making contact with the safety bar on the seat could be described as “… action taken to avoid a collision …” with part of a stationary motor vehicle; but, whatever the intention of Section 99(3)(b) might be, I discern nothing about it which suggests that the action of the plaintiff just described is a relevant action for the purpose of that subsection.
For these reasons, the defendant’s claim against the Motor Accident Commission will be dismissed. I mention that, in the event of the Motor Accident Commission being held liable to indemnify the defendant, it sought a set off against the defendant in an amount equal to the extent of that indemnity. The conclusion I have reached as to the defendant’s claim against it means that this is not a matter which arises for determination.
I turn to a consideration of the defendant’s claim against the first third party.
The defendant entered into a contract of insurance with the first third party (“Ace”). It was called a “Public and Products Liability Policy”. Pursuant to the policy, Ace agreed to indemnify the defendant in respect of personal injury or property damage occurring in connection with the business of the defendant. The policy was in existence at all relevant times. The issue between the parties falls to be determined by an examination of the terms of the policy.
The policy has an exclusion clause. Amongst other things, it provides that the policy does not apply to:
“8. Any liability arising out of the use of any Vehicle owned by, or in the physical or legal control of the Insured:-
(a)which is or should have been registered; or
(b)in respect of which insurance is required by virtue of any legislation relating to Vehicles.
PROVIDED this Exclusion does not apply to:
(i)Vehicles described in Exclusion 2(d)(ii).
(ii)Property Damage occurring during the loading or unloading of a vehicle caused by or arising from the collection or delivery of any goods from or to such vehicle where such Property Damage occurs beyond the limits of any carriageway or thoroughfare.
(iii)Personal Injury occurring during the loading or unloading of a vehicle caused by or arising from the collection or delivery of any goods from or to such vehicle where such Personal Injury occurs beyond the limits of any carriageway or thoroughfare, and
applicable legislation does not require the issuance of insurance against liabilities arising from the use of vehicles beyond the limits of any carriageway or thoroughfare.”
Mr Frayne, for Ace, submits that, giving the words of the exclusion clause there ordinary and natural meaning, they operate to exclude any liability to indemnify the defendant: the injury to the plaintiff arose out of the use of a motor vehicle which was registered and in respect of which insurance was required by virtue of the Act. For his part, Mr Crawley submits that the purpose of the clause is to avoid double insurance so that it should be read down to mean that it does not apply when no liability arises under a compulsory policy of insurance. I think Mr Frayne is correct. I see nothing about the clause to indicate it should be read down in the manner contended for by Mr Crawley. The words of the clause mean what they say. Accordingly, the claim of the defendant against Ace will be dismissed.
I will hear counsel as to costs.

[2003] SADC 119

15 August 2003